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Duncan v. Kansas City Southern Railway Co.10/30/2000
0 feet before the crossing there is a rough cattle guard requiring drivers to stop or slow to cross. Thus, before reaching the railroad crossing, drivers have to slow down or stop for the rough cattle guard, then proceed another 40 feet and stop for the stop sign before the crossing. When drivers are slowed down or stopped for the cattle guard, the view of the tracks is obstructed by ground cover. At the stop sign, the view is unobstructed; however, the expert testified that most drivers have focused their attention on the intersection of Highway 27 by the time they reach this stop sign. Id.
The significance of what was sought by the conduct. The capacities of the actor, whether superior or inferior.
It can hardly be gainsaid that KCS was the superior actor. KCS is a well established railroad giant with the financial resources and manpower to employ the appropriate studies, measures, devices, and expertise to operate trains nationally across thousands of miles of track. KCS with its attendant superior capabilities is a profit-driven enterprise that should absorb the risk of injury that its conduct causes. It is the sophisticated user of the railway as compared to the unassuming motoring public. With its accessible, superior capabilities, KCS could have provided for a safer railroad crossing at this complicated traffic site for the safety of the motoring public. Not only was this traffic site inherently dangerous, the danger of the crossing was further compounded by trees and bushes on the KCS right of way which obscured an approaching train from the motoring public until the vehicle was dangerously close to the railroad crossing. Notwithstanding its superior capacity, it chose a path of callous disregard and merely relied upon a stop sign at this dangerous railroad crossing.
The evidence shows that a vehicle stopped 50 feet from the railroad crossing had a sight distance of only approximately 200 feet down the track to the south because of ground cover. The KCS train was traveling 42 m.p.h. coming from the south on the day of the accident. At 42 m.p.h. the train would have reached the crossing in 3.2 seconds from a distance of 200 feet -- not much time for reaction.
In finding KCS at fault, the majority states: "KCS took no steps to remove the ground cover or to install additional warning devices." Id. Notwithstanding these paramount acts of negligence by KCS, the majority concludes: "We can, however, say that KCS was no more at fault than Mitchell and the trial court's allocation of fault, 68.4% to KCS and 31.06% to Mitchell, was clearly wrong." Id. This conclusion is out of sync with the majority's own reliance on the paramount acts of negligence by KCS in its finding of liability and fault against KCS. This reapportionment of fault flies in the face of well established jurisprudence from this court that instructs our courts of appeal to refrain from doing this very kind of judging: "If, in light of the record in its entirety, the trial court's findings are reasonable, then the appellate court may not reverse, even if convinced it would have weighed the evidence differently sitting as the trier of fact." Duncan, slip op. at 3 (citing Sistler v. Liberty Mut. Ins. Co., 558 So. 2d 1106, 1112 (La. 1990)). Clearly, the trial court's apportionment of fault should have been affirmed by this court.
Reduction of Rachel's General Damages
In reducing Rachel's general damage award, the majority finds it excessive and states: "A review of the cases involving similar injuries reveals that the highest amount that could reasonably be awarded under the facts of this case is $6,000,000. Duncan, slip op. at 15 and footnote 6 (referencing a 1993 case involving
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